State v. Trapp, 012021 WACA, 53970-5-II

Docket Nº53970-5-II
Opinion JudgeWORSWICK, J.
Party NameSTATE OF WASHINGTON, Respondent, v. DALTON RAY TRAPP, Appellant.
Judge PanelWe concur: Lee, C.J., Glasgow, J.
Case DateJanuary 20, 2021
CourtCourt of Appeals of Washington

STATE OF WASHINGTON, Respondent,

v.

DALTON RAY TRAPP, Appellant.

No. 53970-5-II

Court of Appeals of Washington, Division 2

January 20, 2021

UNPUBLISHED OPINION

WORSWICK, J.

Dalton Trapp appeals his conviction for unlawful possession of a controlled substance-methamphetamine. Trapp argues that (1) the evidence was insufficient to support his conviction and that (2) the trial court erred in refusing to give an affirmative defense jury instruction for unwitting possession. The State argues that the evidence was overwhelming and that Trapp waived this affirmative defense when he failed to raise the issue at the omnibus hearing.

We hold that the evidence was sufficient to support Trapp's conviction, but that Trapp was entitled to an unwitting possession jury instruction and refusal to give this instruction was not harmless. Thus, we reverse and remand.1

FACTS

In February 2019, detectives from the Longview Police Department served a search warrant at a single-wide mobile home in Castle Rock. That warrant named a person other than Trapp as its target, but it permitted officers to search the residence for illegal narcotics and related contraband. Prior to the search, the investigating detective briefed the search team that Dalton Trapp might be present at the residence, but it was not confirmed that he lived there.

When officers entered the mobile home, they encountered numerous people, including Trapp. When officers first saw Trapp, he was exiting a room into a long hallway that led to the back of the mobile home, where two bedrooms were located. Trapp's girlfriend, Desiree Fletcher, was staying in the mobile home. A detective interviewed Trapp at the scene, and Trapp made statements to the detective, the substance of which was disputed at trial. Fletcher told police that she was staying in the bedroom.

Officers searched Fletcher's bedroom. The room contained both male and female clothing. During the search, police officers found a metal tin, plastic "baggy," and a loaded syringe, all containing suspected methamphetamine. Other empty, apparently used syringes were also found in the room. Photographs of the bedroom showed the syringes were located in a bag on a desk and in between books on a shelf. Photographs also showed that the plastic bag was located on a sliding keyboard shelf in a desk. A test performed by the Washington State Patrol Crime Laboratory concluded that the suspected methamphetamine was methamphetamine. No drugs were found on Trapp's person. Trapp was arrested and charged with one count of unlawful possession of a controlled substance-methamphetamine.2

Before trial, Trapp and the State completed an omnibus order stating that Trapp would assert a general denial defense. The trial court held an omnibus hearing in April 2019, and Trapp confirmed the omnibus order, which was signed by the trial court judge. During a July 18 pretrial conference, Trapp confirmed he had been given the State's proposed jury instructions and said that they looked appropriate. These proposed instructions did not contain an unwitting possession instruction.

At trial, Officer Jordan Sanders testified about his conversation with Trapp. Detective Sanders testified that he asked Trapp which room was his room and that Trapp identified the room where the illegal narcotics were found. Detective Sanders also testified that he asked Trapp what would be found in the room, and Trapp said they would find roughly a "quarter of a gram of meth." Verbatim Report of Proceedings (VRP) at 113. Detective Sanders further testified that Trapp said that if Fletcher was going to be charged, she "wasn't the only one responsible," that they were "his drugs" just as much as they were hers, and that "he was just as much responsible." VRP at 116-17. According to Detective Sanders, Trapp admitted to being an intravenous methamphetamine user and that he was "just as much responsible as Mrs. Fletcher for the illegal narcotics that [were] in the room." VRP at 117.

Trapp also testified. Trapp said that he did not live in the mobile home and only visited Fletcher there "from time to time." VRP at 153. Trapp denied that he identified the room where he was staying as his room, and had said only that it was a room he was staying in at the time of the raid. Trapp also testified that Fletcher had been living in the mobile home for six months, but that he lived in his own home with his mother. Trapp further testified that he was visiting Fletcher after his shift at work and had been in the mobile home for only a few hours the day of his arrest. Trapp said that he kept no belongings in the bedroom where he visited Fletcher except for his tattooing equipment.

Trapp further testified that he did not have anything to do with the drugs or where they were located in the mobile home. Trapp said he "had no idea" about the drugs in the room, and that he had never seen the drugs and paraphernalia that were seized by the police until the officers showed them to him. Trapp testified that he occasionally smoked methamphetamine, but Trapp denied telling Detective Sanders that he was an intravenous drug user. Trapp also testified that Fletcher and Terry McDonald, who owned the home and who was the subject of the search warrant, were both intravenous drug users and that Trapp was falsely accredited for the related items found in the mobile home.

After the defense had rested its case, the trial court asked Trapp's attorney if he had any objection to the proposed jury instructions. Trapp's attorneys stated, "I think we need to add unwitting possession. I wasn't entirely sure how he dealt with that issue, because I hadn't asked him that. And I think that from what he testified, unwitting possession would be an appropriate addition." VRP at 162.

The State objected based on Trapp not identifying unwitting possession as an affirmative defense sooner, stating, "[W]e have never been informed that the Defense would be pursuing an unwitting possession defense; and, to tell us this now, after we've rested our case, is unacceptable." VRP at 162. Trapp's attorney replied that he was not aware of the defense until Trapp testified.

The trial court denied Trapp's request to give the unwitting possession instruction, stating: Well, I think-I think that's a defense that really needs to be stated. In reviewing the Omnibus Order filed the 22nd of April, it is a general denial. No other-nothing else was indicated at that point in time.

I have to agree with the State, in that if they were aware that that was a possibility, I think the testimony may have changed somewhat, or there would be some additional testimony that would've been presented. I think unless-and I don't know that the State is in a position where even if I allowed that instruction in, that they would be able to reopen-and allow them to reopen their case if they could get any of their witnesses back to testify. So, I do not think I'm going to allow that at this point.

VRP at 162-63. The jury returned a verdict of guilty of unlawful possession of a controlled substance-methamphetamine. Trapp appeals.

ANALYSIS

I. Sufficiency of the Evidence

Trapp argues that the evidence was insufficient to convict him because the State failed to prove that he had dominion and control over the methamphetamine. He argues that the evidence proved only that he was an occasional visitor of the bedroom and that the methamphetamine found there was "not readily observable." Br. of Appellant at 12. Trapp also argues that his alleged statements at the scene did not amount to an admission of possession by him and that "there was very little evidence connecting [him] to the methamphetamine or the premises where the methamphetamine was located." Br of Appellant at 13. We disagree.

A. Legal Principles

1. Standard of Review

"Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the elements of the charged crime beyond a reasonable doubt." State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017). A defendant admits the truth of all the State's evidence when he or she challenges the sufficiency of the evidence. Cardenas-Flores, 189 Wn.2d at 265. "Circumstantial evidence and direct evidence are equally reliable" and "[credibility determinations are for the trier of fact and are not subject to review." State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). We defer to the trier of fact on conflicting testimony, credibility, and the persuasiveness of evidence. State v. Raleigh, 157 Wn.App. 728, 736-37, 238 P.3d 1211 (2010).

2. Constructive Possession

Possession, for purposes of the crime of possession of a controlled substance, may be constructive. State v. Reichert, 158 Wn.App. 374, 390, 242 P.3d 44 (2010). Constructive possession occurs if the defendant has dominion and control over the item. Reichert, 158 Wn.App. at 390. Substantial evidence must exist to prove dominion and control. State v. Davis, 182 Wn.2d 222, 235, 340 P.3d 820 (2014) (Stephens, J., dissenting). We consider the totality of the circumstances when deciding whether substantial evidence supports a reasonable inference of dominion and control therefrom. State v. Enlow, 143 Wn.App. 463, 468-69, 178 P.3d 366 (2008).

When a defendant can immediately convert the item to their actual possession, they have dominion and control over the item. Reichert, 158 Wn.App. at 390. We consider physical proximity as evidence of dominion and control, but physical proximity alone is insufficient to establish dominion and control. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002).

Constructive possession need not be exclusive; more than one person can be in possession...

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